County’s Tower Denial ‘Void’ on Failure to Comply With State Law: AT&T
The U.S. District Court for Southern Illinois in East St. Louis should reject arguments by Monroe County, Illinois, that AT&T waited too long to challenge the timeliness of the municipality’s denial of its cell tower application (see 2212200022), said the carrier’s reply brief Tuesday (docket 3:20-cv-01327).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
AT&T’s second motion for summary judgment Nov. 18 alleged the county’s “protracted review” of its application violated the “timeliness requirements” of the Illinois Counties Code. The county responded in its Dec. 19 opposition that AT&T waited two years into the proceeding before raising the timeliness issue.
The county’s opposition brief doesn't argue that the legal positions taken in AT&T’s second summary judgment motion “are wrong on the merits,” said the company’s reply. The county wrongfully alleges AT&T’s conduct “constituted a waiver of any argument” about the timeliness of the cell tower denial, it said.
Monroe County’s opposition is an attempt to distract from its “unquestioned shortcomings in complying with mandatory state law,” said AT&T. The county’s opposition “fails to introduce evidence” supporting its argument that the carrier waived, “expressly or otherwise,” the 75-day time limit for a decision on the cell tower application, and case law establishes it “cannot waive such a jurisdictional statutory requirement in the first place,” the reply said.
The Counties Code says if the municipality fails to act on a cell tower application within 75 days, the application will be deemed to have been approved, said AT&T. “Here, the 75-day statutory time limit to render decisions on applications for telecommunications facilities is a ‘jurisdictional prerequisite’ to Defendants exercising their zoning power under the Counties Code because a county board’s power to make a siting decision is fully stripped if the time limit is violated,” said AT&T.
The county’s failure to satisfy that jurisdictional prerequisite “divests” the municipality of the power to rule on the cell tower application, said AT&T. The county’s authority to consider the application “requires compliance with the Counties Code,” it said. Its denial of the application is “void” because, by entering the denial in the absence of statutory compliance, the county “lacked the inherent power to enter the denial,” the reply said. It's “undisputed” that Monroe County exceeded 75 days in ruling on the application, and so summary judgment in AT&T’s favor “is warranted,” it said.
Monroe County wrongfully asserts AT&T filed a second motion for summary judgment as part of a “piecemeal” litigation strategy that frustrates the court’s interest in judicial economy, said the company. “This allegation is entirely inaccurate and improperly attempts to recharacterize this matter’s sequence of events,” it said. AT&T’s first motion for summary judgment in November 2021, denied Sept. 30, “unquestionably argued” that AT&T’s tower application “should be deemed approved” due to the county’s “untimeliness in reviewing the application,” it said.
The court’s denial of that motion determined that the timeliness issue “needed further illumination,” said the reply brief. It granted AT&T leave to file an amended complaint and second motion for summary judgment to address the timeliness claims, it said. The county’s efforts to “paint” AT&T’s actions in doing so “as somehow dilatory or disorganized are striking," especially in light of AT&T’s “repeated deference” to the county’s “multiple motions for extension of time and to plead out of time in this matter,” it said.